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DuBois v. Bedford-Flatbush Chiropractic, P.C.

United States District Court, E.D. New York.
Aug 29, 2019
409 F. Supp. 3d 62 (E.D.N.Y. 2019)


18-CV-04416 (LDH) (LB)


Serge DUBOIS, Plaintiff, v. BEDFORD-FLATBUSH CHIROPRACTIC, P.C., Dr. Jeffrey S. Rosner & Dr. Alan S. Rosen, Defendants.

Serge DuBois, Brooklyn, NY, pro se. Gabriel D. Rivera, Charles C. Nicholas, Chesney Nicholas & Brower, LLP, Syosset, NY, for Defendants.

Serge DuBois, Brooklyn, NY, pro se.

Gabriel D. Rivera, Charles C. Nicholas, Chesney Nicholas & Brower, LLP, Syosset, NY, for Defendants.


LaSHANN DeARCY HALL, United States District Judge:

Plaintiff Serge DuBois, proceeding pro se, asserts claims against Defendants Bedford-Flatbush Chiropractic, P.C., Dr. Jeffrey S. Rosner, and Dr. Alan S. Rosen pursuant to 42 U.S.C. §§ 1981, 1983, and 1985(3) ; 18 U.S.C. § 1113 ; the Medical Device Regulation Act; and New York state law. (Compl. 3, ECF No. 1; Pl.'s Aff. Supp. Resp. & Opp. Def.'s Mot. Dismiss ("Pl.'s Opp.") ¶¶ 42–43, ECF No. 10.) Specifically, Plaintiff asserts claims for fraud; discrimination; violations of his human, civil, and legal rights; conspiracy and collusion; sexual harassment and inappropriate touching; and attempted murder. (Compl. 3–4.) Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint in its entirety. (Notice Mot., ECF No. 13.)


The following facts are taken from the complaint and, unless otherwise indicated, are assumed to be true for the purposes of this memorandum and order.

On November 13, 2017, Plaintiff sustained an on-the-job injury while working for the United States Postal Service ("USPS"). (Compl. 6.) On November 28, 2017, he filed a claim for workers' compensation under the Federal Employees' Compensation Act ("FECA"). (Compl. Ex. B.) Between January and April 2018, Plaintiff sought treatment for his injury from Defendants. (Compl. 7.) Plaintiff alleges that Dr. Rosner "inappropriately touched" him and failed to provide Plaintiff's medical records to the FECA compensation board. (Id. at 6.) Plaintiff further alleges that, on April 6, 2018, Dr. Rosner used a "Ten Unit machine" to "transfer[ ] an excessive amount of electricity" to Plaintiff's body. (Id. at 7.) Finally, Plaintiff alleges that Defendants colluded with his employer to have him terminated. (Id. at 8.) According to Plaintiff, Defendants discriminated against him because he is from Haiti. (Id. at 3.) Plaintiff was no longer a patient of Dr. Rosner's as of April 9, 2018. (Id. )


To withstand a Rule 12(b)(6) motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the alleged facts allow the court to draw a "reasonable inference" of a defendant's liability for the alleged misconduct. Id. While this standard requires more than a "sheer possibility" of a defendant's liability, id. , "[i]t is not the Court's function to weigh the evidence that might be presented at trial" on a motion to dismiss. Morris v. Northrop Grumman Corp. , 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, "the Court must merely determine whether the complaint itself is legally sufficient, and, in doing so, it is well settled that the Court must accept the factual allegations of the complaint as true." Id. (citations omitted).

Moreover, where, as here, a plaintiff is proceeding pro se, his pleadings "must be construed liberally and interpreted to raise the strongest arguments that they suggest." Sykes v. Bank of Am. , 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) ). A pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp , 521 F.3d 202, 213–214 (2d Cir. 2008) (quoting Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)). This rule is "particularly so when the pro se plaintiff alleges that [his] civil rights have been violated." Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008) (citing McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004) ). Still, "even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level.’ " Jackson v. NYS Dep't of Labor , 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).


I. Section 1985(3)

To state a § 1985(3) claim, a plaintiff must show: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp. , 7 F.3d 1085, 1087 (2d Cir. 1993) (citing United Bhd. of Carpenters, Local 610 v. Scott , 463 U.S. 825, 828–29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) ).

Defendants argue that dismissal is warranted on the grounds that Plaintiff fails to adequately allege the existence of the second, third, and fourth elements: a discriminatory purpose, an overt act, and an injury. (Defs.' Mem. Law Supp. Mot. Dismiss 8, ECF No. 13-6; Reply Aff. ¶ 24, ECF No. 12.) In an effort to defeat the motion, Plaintiff simply reasserts the patently conclusory allegations in the complaint. For example, Plaintiff alleges that "Defendants violated the Plaintiff's Human rights .... [B]oth Plaintiff's Civil and Legal Rights ... should have been protected from being violated ... [and Plaintiff] from being discriminated [against], tortured and faced [with] attempted murder." (Pl.'s Opp. ¶ 27.) Plaintiff further alleges that his claim "is fully established by exhibited evidence and it demonstrates all four requir[ed] elements." (Id. ¶ 32.) He "requests this Court to consider the fact that, ... [exhibited evidence] establish[es] with some degree of particularity overt acts." (Id. ¶ 33.) These allegations fail to establish the requisite elements. Indeed, his conclusory statements are too fantastical to be plausible. See, e.g. , Temple of Lost Sheep, Inc. v. Abrams , 930 F.2d 178, 185 (2d Cir. 1991) (affirming dismissal of § 1985(3) claims "couched in terms of conclusory allegations and fail[ing] to demonstrate ... invidiously discriminatory animus").

Moreover, the Court finds dismissal proper on an additional ground: Plaintiff's failure to adequately plead the first element, the existence of a conspiracy. "[I]n order to maintain an action under Section 1985, a plaintiff ‘must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.’ " Webb v. Goord , 340 F.3d 105, 110–11 (2d Cir. 2003) (quoting Romer v. Morgenthau , 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000) ). "It is well settled that claims of conspiracy containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Gallop v. Cheney , 642 F.3d 364, 369 (2d Cir. 2011) (internal quotation marks omitted).

Here again, Plaintiff offers nothing more than conclusory allegations of a conspiracy between and among Defendants and other actors Plaintiff encountered in the course of his attempt to receive workers' compensation. (See Compl. 4.) These third parties include his employer USPS; employees of the Workers' Compensation Board; "Mamonides [sic] Hospital and other medical facilities where the Plaintiff was treated"; and "Plaintiff's prior attorney, Ms. Gay H. Snyder, Esq., and several other lawyers that the Plaintiff attempted to retain." (Id. at 4, 9; Pl.'s Opp. ¶ 30.) These allegations are just as fantastical as those discarded above. Accordingly, the § 1985(3) claim fails.

II. Other Federal Claims

Plaintiff alleges that Defendants attempted to murder him in violation of 18 U.S.C. § 1113 and improperly used the "Tens Unit" machine in violation of the Medical Device Regulation Act. (Pl.'s Opp. ¶¶ 42–43.) This claim fails as a matter of law.

Section 1113, which prohibits attempted murder or manslaughter "within the special maritime and territorial jurisdiction of the United States," does not apply to the circumstances of this case. More importantly, it "is a criminal statute, and no private right of action exists under criminal statutes absent an indication that Congress intended to create such a private right of action, which is not present here." Nath v. Select Portfolio Servicing, Inc. , 732 F. App'x 85, 87 (2d Cir. 2018) (summary order); accord Nguyen v. Ridgewood Sav. Bank , No. 14-CV-1058, 2015 WL 2354308, at *13 (E.D.N.Y. May 15, 2015) (finding no private right of action under § 1113 ).

Plaintiff's Medical Device Regulation Act claim appears to refer to the Medical Device Amendments of 1976 (the "MDA"), the purpose of which is "to provide for the safety and effectiveness of medical devices intended for human use, and for other purposes." Pub. L. No. 94-295, 90 Stat. 539 (1976). The MDA sets forth a three-tier classification scheme for medical devices—for example, a Class II device "may be marketed without advance approval [but] manufacturers of such devices must comply with federal performance regulations known as ‘special controls.’ " Medtronic, Inc. v. Lohr , 518 U.S. 470, 477, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Such controls include "promulgation of performance standards, postmarket surveillance, ... development and dissemination of guidelines," and other such requirements on manufacturers before devices are sold at market. 21 U.S.C.S. § 360c(a)(1)(B). A transcutaneous electrical nerve stimulator (a "TENS unit") "is a device used to apply an electrical current to electrodes on a patient's skin to treat pain" and is classified as a Class II medical device. 21 C.F.R. § 882.5890 (2018). Critically, the MDA does not provide a private right of action arising out of a practitioner's use of a TENS unit. Thus, this claim also fails.

III. Sections 1981 and 1983

Though Defendants move to dismiss Plaintiff's complaint generally, they do not specifically address Plaintiff's §§ 1981 and 1983 claims. Nonetheless, the claims appear to be deficient for the following reasons.

Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a). The statute applies not only to government conduct but also "prohibits racial discrimination in the making and enforcement of private contracts." Runyon v. McCrary , 427 U.S. 160, 168, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). To maintain a § 1981 claim, a plaintiff must show "(1) [he is] a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian , 7 F.3d at 1087. "Essential to an action under Section 1981 are allegations that the defendants' acts were purposefully discriminatory and racially motivated." Albert v. Carovano , 851 F.2d 561, 571 (2d Cir. 1988) (citations omitted). Conclusory allegations are insufficient to survive dismissal. Mian , 7 F.3d at 1087.

Here, Plaintiff's bare allegation of racial discrimination is conclusory. He simply alleges that Defendants discriminated against him because he is from Haiti. (Compl. 3.) Even assuming that Plaintiff has adequately pleaded his status as a racial minority, he fails to allege any facts demonstrating a causal connection between his race and Defendants' actions. In light of Plaintiff's apparent failure to adequately plead the essential element of intentional discrimination, his contention that "making or enforcing a medical claim ... is ... the same as a contract" and therefore covered by § 1981 does not save his claim. (See Pl.'s Opp. ¶ 26.)

This suggests discrimination based on national origin, which on its own is not actionable under § 1981. See Albert v. Carovano , 851 F.2d 561, 572 (2d Cir. 1988) ("Section 1981 was intended to combat racial or ethnic discrimination, nothing more."). However, "the line between discrimination on account of race and discrimination on account of national origin may be so thin as to be indiscernible." Deravin v. Kerik , 335 F.3d 195, 202 (2d Cir. 2003) (quoting Adames v. Mitsubishi Bank, Ltd. , 751 F. Supp. 1548, 1559 (E.D.N.Y. 1990) ). Additionally, although Plaintiff does not specifically allege race-based discrimination in his complaint, his opposition brief does allege racial harassment. (Pl.'s Opp. ¶ 24.)

To support a § 1983 claim, the "the conduct at issue ‘must have been committed by a person acting under color of state law.’ " Cornejo v. Bell , 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan , 13 F.3d 545, 547 (2d Cir. 1994) ). Such "state action occurs where the challenged action of a private party is ‘fairly attributable’ to the state." Logan v. Bennington Coll. Corp. , 72 F.3d 1017, 1027 (2d Cir. 1995) (quoting Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) ).

Here, Defendants ostensibly are private actors. However, in the interest of reading Plaintiff's complaint "liberally and interpreted to raise the strongest arguments that [it can] suggest," Sykes , 723 F.3d at 403, the Court considers whether Defendants' issuance of reports pursuant to FECA or some other activity establishes "such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be treated as that of the State itself.’ " Tancredi v. Metropolitan Life Ins. Co. , 316 F.3d 308, 312 (2d Cir. 2003) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n , 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) ). Such a nexus may be found where "the state exercises coercive power over ... the private actor," "the private actor operates as a willful participant in a joint activity with the State," or the private actor "has been delegated a public function." Id. (internal citations and quotations omitted). Plaintiff does not suggest that the state exercised coercive power over Defendants. Therefore, the Court considers the joint-activity and public-function tests in turn.

"The touchstone of joint action is often a ‘plan, prearrangement, conspiracy, custom, or policy’ shared by the private actor and the [state].’ " Forbes v. City of New York , No. 05-CV-7331, 2008 WL 3539936, at *5 (S.D.N.Y. Aug. 12, 2008) (quoting Ginsberg v. Healey Car & Truck Leasing, Inc. , 189 F.3d 268, 272 (2d Cir. 1999) ). "A private actor can only be a willful participant in joint activity with the State or its agents if the two share some common goal to violate the plaintiff's [constitutional] rights." Betts v. Shearman , 751 F.3d 78, 85 (2d Cir. 2014) (internal citations omitted). Here, Plaintiff alleges a conspiracy between Defendants, the Workers' Compensation Board, and others. (Compl. 4.) However, as discussed above with respect to the § 1985 claim, Plaintiff fails to adequately plead the existence of a conspiracy. Because Plaintiff does not otherwise allege a "prearrangement" between Defendants and the state, Plaintiff fails to establish joint action.

Under the public-function test, "a private entity may be considered a state actor when it exercises a function ‘traditionally exclusively reserved to the State.’ " Manhattan Cmty. Access Corp. v. Halleck , ––– U.S. ––––, 139 S. Ct. 1921, 1926, 204 L.Ed.2d 405 (2019). "The [Supreme] Court has stressed that ‘very few’ functions fall into that category." Id. at 1929 (quoting Flagg Bros., Inc. v. Brooks , 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) ). Public functions may include running elections and operating a company town but not running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, or supplying electricity. Id.

Here, Plaintiff fails to adequately allege that Defendants perform a public function. Neither the provision of chiropractic services nor the issuance of medical reports pursuant to FECA is a function traditionally and exclusively exercised by government. Cf. Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 55–57, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (holding that private companies' administration of insurance payments in connection with state workers' compensation system was not state action).

Additionally, in order to maintain a § 1983 claim, "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan , 13 F.3d 545, 547 (2d Cir. 1994). Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan , 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The facts alleged by Plaintiff do not appear to plausibly state a violation of the United States Constitution or other federal laws.

Accordingly, Plaintiff is ordered to show cause as to why his §§ 1981 and 1983 claims should not be dismissed as a matter of law.

IV. State-Law Claims

Plaintiff's remaining claims are grounded in state law. The Court reserves ruling on Plaintiff's state-law claims until after the resolution of his §§ 1981 and 1983 claims.


For the foregoing reasons, Defendants' motion to dismiss the complaint is GRANTED in part. Plaintiff's claims under 42 U.S.C. § 1985(3), 18 U.S.C. § 1113, and the Medical Device Regulation Act are dismissed.

Within 30 days from the entry of this memorandum and order, Plaintiff is ordered to show cause as to why his §§ 1981 and 1983 claims should not be dismissed for failure to state a claim.

Alternatively, Plaintiff may file an amended complaint within 30 days from the entry of this memorandum and order. Cruz v. Gomez , 202 F.3d 593 (2d Cir. 2000). The amended complaint must be captioned "Amended Complaint" and bear the same docket number as this memorandum and order.

Failure to meet either deadline will result in dismissal of Plaintiff's case for failure to prosecute. The Clerk of Court is respectfully directed to mail a copy of this order to the pro se litigant.


Summaries of

DuBois v. Bedford-Flatbush Chiropractic, P.C.

United States District Court, E.D. New York.
Aug 29, 2019
409 F. Supp. 3d 62 (E.D.N.Y. 2019)
Case details for

DuBois v. Bedford-Flatbush Chiropractic, P.C.

Case Details

Full title:Serge DUBOIS, Plaintiff, v. BEDFORD-FLATBUSH CHIROPRACTIC, P.C., Dr…

Court:United States District Court, E.D. New York.

Date published: Aug 29, 2019


409 F. Supp. 3d 62 (E.D.N.Y. 2019)